Crawford v. Southern Ry. Co.
| Decision Date | 19 July 1899 |
| Citation | 33 S.E. 826,106 Ga. 870 |
| Parties | CRAWFORD v. SOUTHERN RY. CO. |
| Court | Georgia Supreme Court |
Syllabus by the Court.
1. Where, in an action by a father against a railway company for the killing of his minor child, the petition alleges that the child was struck and killed by a locomotive drawing a train running "at a high and negligent rate of speed, to wit at the rate of from twenty-five to thirty miles an hour," "within the limits of an incorporated and populous city"; that this rate of speed "was grossly negligent, and showed a reckless disregard of human life"; that, "by the observance of proper attention and ordinary care on the part of [the] engineer," the child "could have been seen by him for over 100 yards before reaching the point at which [she] was struck" and that the engineer "was not in the discharge of his duty and not keeping a lookout ahead of him as the engine rushed to the point where the child was killed,"-- held, that the petition shows a case for submission to a jury, in order that they might determine, in the light of all the evidence introduced, whether the running of the train at the place in question at the speed designated was or was not negligent, whether or not the engineer was under the duty of looking out for the deceased, and, if so, whether or not he failed to observe such duty.
2. A child only 4 1/2 years old is incapable of being guilty of contributory negligence.
3. The question whether a particular child of such age was capable of rendering any valuable service to its father should be left to a jury to determine, in the light of the evidence submitted upon this point.
Error from city court of Griffin; E. W. Beck, Judge.
Action by A. J. Crawford against the Southern Railway Company. Judgment for defendant on demurrer, and plaintiff brings error. Reversed.
R. T Daniel, Hoke Smith, and H. C. Peeples, for plaintiff in error.
C. E. Battle and J. D. Boyd, Jr., for defendant in error.
This case was dismissed, upon demurrer, in the court below, and the plaintiff excepted. The main contention of the demurrer may be stated as follows: Taking the allegations of the plaintiff's petition to be true, his child was a trespasser upon the right of way and track of the defendant, and therefore the engineer engaged in running the defendant's train which killed the child owed it no duty whatever until its presence in a position of peril was discovered by him. It is not alleged in the petition that the engineer saw the child upon or dangerously near the track in time to prevent the collision which resulted in her death. Therefore, relatively to this child, the engineer was neither negligent in running his train, at the locality where the accident occurred, at the rate of from 25 to 30 miles an hour, nor in allowing his attention, while so running the train, to be diverted from the track in front of the engine to persons or things in the neighborhood, but to the side of the track. Is this contention sound?
Granting that a child only 4 1/2 years of age who happens to stray upon a railroad track without the consent of the railway company is a trespasser, in the full sense of the term as applied to adult persons who, without license, go upon the track, and that ordinarily an engineer in control of a running locomotive owes no duty whatever to a trespasser until he discovers the latter's presence upon the track in front of the engine,--upon which questions we now express no opinion,--will such a rule, if established, apply to a railroad track in every locality through which it passes, and under all circumstances? We apprehend not. One in the conduct of his own lawful affairs may not wantonly or recklessly injure even a wrongdoer, who, from mere carelessness or thoughtlessness, goes upon his premises. He must so conduct his affairs as not to needlessly inflict injury upon another. Section 2321 of the Civil Code provides that "a railroad company shall be liable for any damage done to persons, stock or other property, by the running of the locomotives, or cars, or other machinery of such company, or for damage done by any person in the employment or service of such company unless the company shall make it appear that their agents have exercised all ordinary and reasonable care and diligence, the presumption in all cases being against the company." No exception is here made, in favor of the company, in a case where the injury inflicted by one of its trains is upon a trespasser. It is true that this court, in the case of Holland v. Sparks, 92 Ga. 753, 18 S.E. 990, decided that, "where no duty of diligence appears relatively to the person injured, there can be no presumption of its breach, notwithstanding the broad language of this section of the Code." It is also true that that decision was rendered in a case where a trespasser upon the right of way of the defendant railway company was killed by the sudden derailment of several cars forming a part of a rapidly moving freight train; and, although it was insisted by the plaintiff "that the servants in charge of the defendant's train were running it at a high and dangerous rate of speed, and that this conduct on their part amounted to negligence," it was held that the railroad company owed the deceased no duty with respect to the speed at which its train approached the point at which he was killed. But the court said: "The deceased was at a place where those in charge of the train had no reason to expect any one, and therefore the company owed him no duty with respect to the speed at which its train approached that point." In Railway Co. v. Gravitt, 93 Ga. 369, 20 S.E. 550, it was held that "the duty to observe all ordinary and reasonable care and diligence" towards a person "who, without license from the company, is walking upon a railway track on a trestle, though such trestle be situated between a blow post and a public crossing," "arises when his presence becomes known to the engineer, and not before." In that case, as appears from an examination of its record, the person in question was killed, not in a town or city, but in the county, upon a railroad trestle which was 30 feet high and over 300 feet long. So, like the person killed in the Holland Case, he was "at a place where those in charge of the train had no reason to expect any one," and therefore it was held that the railway company owed him no diligence until the engineer in charge of its train discovered his presence there. If, however, injury is inflicted upon a trespasser, and, in a suit against the railway company for damages sustained in consequence of such injury, it appears that, although the person injured was a trespasser, the company owed him some degree of diligence to prevent the injury, the presumption would be against the company, and it would be liable, unless it showed that its agents exercised all ordinary and reasonable care and diligence. Under such circumstances, the fact that the person injured or killed was a trespasser would be material only as it might tend to illustrate what would be, relatively to him, the exercise of all ordinary and reasonable care and diligence. Admitting, for the sake of the argument, that the general rule is that a railroad company owes no duty to a trespasser who is upon or dangerously near its track, in front of a moving train, until its servants have discovered his presence there, and therefore, so far as his safety is concerned, is not obliged to maintain a lookout in the direction in which the train is moving, we do not think that this could properly be held to be a uniform, fixed, and invariable rule, applicable alike to all cases and under all circumstances. Conduct which might, under one set of circumstances, show that all ordinary and reasonable care and diligence had been observed, might, under a different set of circumstances, be insufficient to show an observance of such care and diligence. We think that such a rule could mean no more than this: Taking the locality where the train is running, and all the surrounding circumstances, if those in control of the movement of the train have no reason to apprehend that there may likely be a human being on the track in front of the engine, they are under no duty to one who may in fact be there, until they have actually discovered that he is there. But if, from the locality or surrounding circumstances, there is reason to apprehend that the track in front of the locomotive may not be clear of human beings, then, it seems to us, it is the duty of the employés of the company to keep a lookout ahead of the train,--most assuredly so unless they are performing some duty which prevents their looking out upon the track in the direction in which the train is moving. Suppose that a locomotive engineer knows that, in a particular locality, people, and especially children, without even an implied license of the railroad company, are likely to be upon the railroad track; can he, while his train is rushing at great velocity through this locality, fail to look down the track in front of him, without being guilty of negligence, relatively to a child who may be injured or killed by the locomotive? Are people--children as well as adults--likely, at...
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